Sunday, June 13, 2010

The Court while dealing with an application under Order VII Rule 11 is not required to make an elaborate enquiry into debatable, doubtful or complicated questions of law or fact. What is the legal effect of the grant of patent in favour of the defendant and how far it can entitle the defendant to continue the manufacture and marking of its product and whether the said product is at all similar in design to the one patented in favour of the plaintiff respondent herein are all questions that would need to be addressed at the trial by the Court in the course of and at the conclusion of the trial. While no final opinion on those aspects need be expressed by us, the fact remains that the plaint discloses the cause of action and raises issues of fact and law of considerable importance that need to be adjudicated upon by the Court. Having said so, we may make it clear that the opinion expressed by the learned Single Judge on different aspects touching the merits of the cases set up by both the parties shall not be treated to be the expression of a final opinion on those aspects which the Court shall be free in the ultimate analysis to determine at the conclusion of the trial. Beyond that, it is neither necessary nor proper for us to say anything lest we re-judge the issues that arise for consideration in the suit or prejudice the case of one or the other party in the same. With the above observations, this appeal fails and is hereby dismissed with costs assessed at Rs.5, 000/-.

Petition u/s. 24 of CPC seeking transfer of Suit No.336/2003 petition under Section 24 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC') seeking transfer of Suit No.336/2003 (Honda Giken Kogyo Kabushiki Kaisha vs. Riaz Ahmed Khan and Others) which is allegedly pending before the Additional District Judge, Delhi. As would be apparent from the facts of this case narrated below, the key question is whether there is any suit pending before the Additional District Judge, Delhi It is obvious that if there is no pending suit, the question of transfer / withdrawal of the same to this court cannot arise.
Petition dismissed.

The plaintiff to succeed the three ingredients of prima facie case, balance of convenience and irretrievable injury have to be satisfied by the plaintiff. A prima facie case is a pre-requisite for grant of interim injunction. The plaintiff had surrendered rights in terms of the family settlement dated 27.3.1997 except for a period of three years for Zone A. The three year period is long over. The plaintiff has received consideration for transferring the rights to the Anil Group. The defendant derives its rights as assignee from the Anil Group. There is, thus, no prima facie case in favour of the plaintiff. Thus, the very first ingredient required for grant of interim injunction is not present. There is, thus no question of any irretrievable injury or balance of convenience being in favour of the plaintiff.

- Suit for permanent injunction restraining infringement of trademarks and passing off – HELD "facts and circumstances show that the plaintiffs have the ownership of the aforesaid trademarks and therefore no other person has any right to use marks which are phonetically and visually similar to the plaintiffs marks as also such marks being coined words. The defendants have attempted to counterfeit the products of the plaintiffs and pass off their goods as that of the plaintiffs. The defendants have no right to use the aforementioned trade mark/s of the plaintiffs and that too in respect of same goods. This has not only caused loss of profits to the plaintiffs, but also resulted in inferior products being made available to the public at large who have been deceived by the conduct of the defendants by making the public to believe that the marks the defendants used were the valid and the incontestable marks of the plaintiffs. It cannot be lost sight of the fact that the defendants mark is such that not only would an unwary purchaser be misled and deceived into buying the wrong product but it could in turn lead to disastrous consequences, the products being pharmaceutical products thus endangering human lives.

Other aspect which arises for consideration is the issue of damages and rendition of accounts. Learned counsel for the plaintiff's contends that there are catena of judgements by this Court where the parties which do not appear or fail to contest the matter should not seek to get advantage out of their failure to produce the relevant material on record for determination of such damages. There is force in the contention of the learned counsel for the plaintiff as this aspect has been repeatedly examined by this Court in the judgement of Times Internet Limited v. Indiatmes.com & Ors., being CS (OS) No. 125/2007 pronounced on 31.7.2007. Learned counsel for the plaintiff's has substantiated his case to such damages by reference to the judgement of this Court in Asian Paints (India) Ltd. v. Balaji Paints & Chemicals & Ors., 2006 (130) DLT 150 wherein it has been observed that a party not appearing in the Court should not avail of the benefit of such absence from the Court proceedings.

Code of Civil Procedure order 39 R 1 & 2
Taking overall view of the matter, I have no hesitation in accepting the argument of the Plaintiff that the Defendants have indulged in infringement of copyright of the Plaintiff in relation to her original literary work of programme titled "Work in Progress".

Accordingly, in my view, Plaintiff is entitled to ad-interim relief also on the ground of infringement of copyright of Plaintiff's literary work in relation to programme titled "Work in Progress".

In the circumstances, ad-interim relief in terms of prayer clauses (a) and (b) of the Notice of Motion as prayed for is granted which read thus:

"a. That pending the hearing and final disposal of the suit it is absolutely just, necessary and proper that the Plaintiff is entitled to an order and injunction of this Hon'ble Court restraining the Defendants by themselves, its Directors, servants, agents and associate concerns/firms from in any manner whatsoever infringing the copyright of the Plaintiffs in the original 'literary work' being the concept note of the television programme 'Work in Progress', by directing or making or copying or reproducing the same or publishing or broadcasting or otherwise exploiting the work by making and broadcasting the television programme 'Summer Showdown', without the Plaintiff's consent so as to infringe the copyright of the Plaintiffs' in the original 'literary work' being the concept note of the television programme 'Work in Progress';

b. That pending the hearing and final disposal of the suit it is absolutely just, necessary and proper that the Plaintiff is entitled to an order and injunction of this Hon'ble Court restraining the Defendants by themselves, its Directors, servants, agents and associate concerns/firms from in any manner whatsoever breaching the confidential information imparted by the Plaintiff and contained in the concept note of the television programme 'Work in Progress', by directing or making or copying or reproducing the same or publishing or broadcasting or otherwise exploiting the work by making and broadcasting the television programme 'Summer Showdown', without the Plaintiff's consent and/or license, so as to breach the confidential information imparted by the Plaintiff and contained in the concept note of the television programme 'Work in Progress'."

Code of Civil Procedure, 1908 Rule 1 & 2
Appeals to challenge order dismissing application for ad-interim injunction restraining respondents from committing acts of infringement in respect of their trade mark "MILKA WONDER CAKE" by using trademark "MILKA" in respect of cakes - Held, As observed by the Apex Court in the judgment reported in 2002 (110) CC 518, 2002 AIR(SC) 275 ( Laxmikant V. Patel v. Chetanbhai Shah, ) . Refusal to grant injunction in spite of the availability of facts, which are prima facie established by overwhelming evidence and material available on record justifying the grant thereof, occasion a failure of justice and such injury to the plaintiff would not be capable of being undone at a later stage.

We do not wish to comment more about the validity of the appellant's trade mark in the present appeals as it would have a bearing on the same issue, which is stated to be pending before the Intellectual Board in the proceedings initiated by the respondents for rectification.

While considering the question of balance of convenience, the possible confusion that may cause in the mind of an ordinary person of average memory and imperfect recollection along with the possibility of difficulties and loss that may be caused to a party complaining infringement, has to be taken note of. In the case on hand, the product is cake and it will not be possible for an ordinary person to identify a particular product as both the products are found to be more or less identical. Therefore it would definitely cause confusion among the customers. The appellant has stated in so many words about the investment and the amount spent by him for sales promotion. Considering the prima facie evidence produced by the appellant and the balance of convenience, we are convinced that the appellant is entitled for an order of injunction pending disposal of the suit.

Appeal filed to challenge the order against dismissal of application for an ad interim injunction under O. 39, Rules. 1 and 2 of CPC - Application for ad interim injunction was filed for perpetual injunction restraining defendants from manufacturing or selling locks and hardware items under offending trademark "KEY MANN"
HELD
A reading of Section 28(3) WITH Section 30(1)(d) shows that the proprietor of a registered trademark cannot file an infringement action against a proprietor of an identical or a similar trademark. While Sections 28(3) and 30(1)(d) on the one hand deal with the rights of registered proprietors of identical trademarks and bar action of infringement against each other. Section 27(2) ON THE OTHER HAND DEALS WITH THE PASSING OFF ACTION. The rights of action under Section 27(2) are not affected by Section 28(3) and Section 30(1)(d). Therefore, registration of a trademark under the Act would be irrelevant in an action for passing off. Registration of a trademark in fact does not confer any new right on the proprietor thereof than what already existed at common law without registration of the mark
We say so because in the absence of any statutory provision making a search essential, the practice of making a search or the breach thereof would be insufficient to support a finding that the party concerned has not come to the Court with clean hands. The learned Single Judge has also found that the plaintiff had not referred to the opposition of the defendants to the plaintiff's application for registration. That observation assumes that the opposition had been notified to the plaintiff. The material placed on record, however, does not support any such assumption. In the circumstances, the question mark put by the learned Single Judge on the bona fides of the plaintiff may remain angry area for future debate but may not be sufficient on the available material to support the vacation of the interim order.

Suit for perpetual injunction restraining defendants from infringing the Plaintiff's copyright in the literary work and cinematograph film embodying television game show "Titan Antakshari" being broadcast on its television channel "Zee" since September, 1993 inter-alia by defendants broadcasting the television game show "Antakshari .
Defendant No. 1 was employed with plaintiff under designation 'Consultant' on 23.7.1992 and from 1.4.1999 he was engaged by plaintiff under contract of service .
Held, relationship between the Plaintiff and the first Defendant from inception was one of contract of service - Plaintiff is not entitled to monopoly in concept of testing person's knowledge and memory of Hindi film music, it is manner in which contestant's knowledge and memory is tested, which accounts for novelty.
There is no magic in expression "concept note" and it would be necessary for Court in each case, to examine whether concept note constitutes work which is copyrightable and entitled to protection under provisions of the Act, concept note has not been established by Plaintiff .
Making of another film is not included under section 14(d)(i) and such other film, even though it resembles completely copyrighted film, does not fall within expression 'to make a copy of the film' and, therefore, does not amount to infringement of whole of copyright of first film - Passing off action can lie in case of reality show or in case of serial which involves spontaneous participation and interaction of 95 different participants in each episode – Petition disposed of.

Appeal filed against dismissal of Notice of Motion filed foo restraining respondents from infringing appellant's registered design of cap. Appellants were registered owners of design article called "Parachute Cap" on the other hand respondents had filed Application for registration of their's as "Cocoraj Cap" . Notice of motion was dismissed on grounds that Appellants' cap was not "an article" as defined in s. 2(a) of the Act by mainly relying on English Court's Judgment of Ford Motor Company Limited's Design Applications.
Held, that cap of packing is an article within ambit of definition of "an article" as defined in 2(1) of the Act of 2000. Definition of "article" under the Act read with definition of "design" are different from provision of English statute and words "includes any part of an article capable of being made and sold separately", whereas, in English statute words are "if that part is to be made and sold separately" - Phrase "capable of being made and sold separately" covers cases not only that article upon which design article can be made but also can be sold separately. Designed article cap is capable of being made separately and sold separately since
the Appellants/ Plaintiffs got registration under the Design Act, therefore, such owner of design article is definitely entitled to have exclusive rights to claim protection . Looking from top and surface pattern of bottle cap, even from point of view of shape and configuration and surface pattern of bottle cap, both bottles are not similar . Moreover caps do not have identical configuration and protrusions and therefore, there is no question of infringement of any registered design. Appeal disposed of.

vis-a-vis Section 27, 106, 134, 135 of Trade and Merchandise Marks Act, 1958 r/w Order 2 Rule 2 and 3 of Civil Procedure Code, 1908 -
Composite suit - Jurisdiction of court - Defendant is resident of Andhra Pradesh, the Delhi High Court had no jurisdiction - Composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise - What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order II Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act as considered in Dhoda House (supra), therefore, would mean the suit which is founded on infringement of a copy right and wherein the incidental power of the Court is required to be invoked. A plaintiff may seek a remedy which can otherwise be granted by the court. It was that aspect of the matter which had not been considered in Dhoda House (supra) but it never meant that two suits having different causes of actions can be clubbed together as a composite suit.

Trade Marks, Act, 1999 - ss. 29, 30(1)(b) - Applications filed for injunction alleging infringement and passing off in respect of registered trademarks GAP, Old Navy and Banana Republic in respect of apparels . Plaintiffs raising the defence that they are doing parallel import of goods under aforesaid trademarks, for which infringement has been claimed and which were manufactured much before but were no longer in use and were intended for sale in specific country.
Use of GAPL and GAPPLE trademarks by defendants were in clear violation of s. 29(5). Defendants contended that goods were meant to be sold only in the Indian market were sourced as per Agreement. Held, defendants will not use abbreviated form of GAPL though they are entitled to use full name 'Garments and Accessories Price Less' . Defendants however can use trademark GAPPLE, but not in the same writing style or the colour combination of white on blue as identified with GAP. Further local Commissioner to inspect goods. Applications disposed of.

Guidelines are being enumerated which the Court may take into consideration on the question of appointment of a Local Commissioner in software infringement and piracy matters:-

(i) The object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex parte appointment of a Local Commissioner there is likelihood that such evidence may be lost, removed or destroyed;

(ii) Request for ex parte appointment of a Local Commissioner in such matters is usual and in fact is intended to sub serve the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered;

(iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade.

(iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the defendant's premises. Any such attempt also inheres in it the possibility of dis-appearance of the pirated software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or investigator is not to be insisted upon as pre condition. A report of private Investigator need not be dis-regarded or rejected simply because of his engagement by the plaintiff. The information provided by the private Investigator should receive objective evaluation.

(v) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy.

Ad interim injunction restraining the defendant from manufacturing, selling, marketing, advertising or in any manner using the trademarks 'SUPER BRIGHT', SUPER BRIGHT EL', 'SUPER BRIGHT EL-C, 'SUPER BRIGHT EL-81', 'SUPER BRIGHT HD ULTRA' and 'SUPER BRIGHT Bleach' or any other trademark which is deceptively similar or confusingly similar to that of the plaintiff.

Held that in action of passing off it has to be proved that the person to whom the goods were supplied would have been deceived into believing that the goods were that of the plaintiff when in fact they were not. Defendant supplying the rogue product , applying the plaintiffs trade mark 'SUPER BRIGHT. Fit case for likely loss of goodwill and reputation by the plaintiff if the injunction was not granted.
Plaintiffs were able to show prima facie that they are the prior users of the mark and that they have made out a prima facie case for grant of an ad interim injunction in their favour.
Injunction granted.

Section 9
Suit for banning/issuing an injunction on publication of a book, which is in existence and being published and read for last 135 years, on the ground that its publication was likely to disturb public tranquility and public order.

HELD Plaintiffs, after 135 years wanted to use it as a tool to cause damage to the society. Such kind of suits are not of civil nature and are purely of religious nature .
In such a situation the Court could not have entertained the suit for injunction dismissed.

Plaintiffs have been selling well known FORD Cars . Against this the respondent falsely claiming to be of proprietors of the mark FORD in Class-25 and using the mark FORD in respect of selling and promoting their footwear . Action brought against defendants of infringement of trademark .
Held when the plaintiffs carry on business in commercial quantities and have appointed authorised agents in Delhi, in such a factual situation Delhi High Court possessing territorial jurisdiction to entertain the Suit

Pleadings have to be taken to be a correct narration of facts . Application for rejection of plaint under CPC, dismissed.

Plaintiffs have been selling well known FORD Cars . Against thgis the respondent falsely claiming to be of proprietors of the mark FORD in Class-25 and using the mark FORD in respect of selling and promoting their footwear . Action brought against defendants of infringement of trademark .
Held when the plaintiffs carry on business in commercial quantities and have apponted authorised agents in Delhi, in such a factual situation Delhi High Court possessing territorial jurisdiction to entertain the Suit

Pleadings have to be taken to be a correct narration of facts . Application for rejection of plaint under CPC, dismissed.

(1) What shall be the standard of originality in the copy-edited judgments of the Supreme Court which is a derivative work and what would be required in a derivative work to treat it the original work of an author and thereby giving a protected right under the Copyright Act, 1957 to the author of the derivative work ? and (2) Whether the entire version of the copy-edited text of the judgments published in the appellants law report SCC would be entitled for a copyright as an original literary work, the copy-edited judgments having been claimed as a result of inextricable and inseparable admixture of the copy-editing inputs and the raw text, taken together, as a result of insertion of all SCC copy-editing inputs into the raw text, or whether the appellants would be entitled to the copyright in some of the inputs which have been put in the raw text ?
Held, judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright . The High Court has already granted interim relief to the plaintiff- appellants by directing that though the respondent- defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants. It is further directed by us that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like 'concurring', 'partly dissenting', etc. on the basis of reported judgments in SCC. The judgment of the High Court is modified to the extent that in addition to the interim relief already granted by the High Court, we have granted the above-mentioned additional relief to the appellants.

Order 39 Rules 1 & 2
Plaintiffs owners of RANGOLI which is a registered trademark regarding Essence stick .
Defendant also using word RANGILI for sale of Essence stick therefore using phonetically and visually similar mark as that of registered trademark of the plaintiffs . Fit case for Interim injunction .
HELD
Thus, phonetical similarity was alleged and it has been decided by the trial court and therefore, the contention raised by the original defendants that phonetical similarity cannot be argued by the present appellants before this Court is not accepted. On the contrary, injunction ought to have been granted, looking to the mark RANGILI, which is structurally and phonetically similar to registered Trademrk of plaintiffs viz. 'RANGOLI'. Mark 'RANGILI' is deceptively similar to registered Trademark RANGOLI. A man of imperfect recollection and of average inteli will be deceived by mark used by the defendants. [Para 4]

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, this Appeal from Order is allowed. The order dated 5th November, 2007 beh Notice of Motion exhs. 6 and 7 in Civil Suit No. 2175 of 2007 passed by the learnt Judge, City Civil Court, Court No. 6, Ahmedabad is hereby quashed and set aside. The respondents (original defendants), their servants, agents, dealers, distributor; stockists, publishers and printers are hereby restrained from using any label, materials, advertisement materials, the mark RANGILI, on and after a period of eight weeks from today. Appeal From Order is allowed. Civil Application No. of 2007 stands disposed of. [Para 5]

Section 107
Blog of Mr.J.Sai Deepak titled "SPARKS FLY AS TITANS CROSS PLUGS",
(http://spicyipindia.blogspot.com). Quoted with approval.
Doctrine of pith and marrow of the claim – Explained and applied. (Para 82.)
HELD
We have noted that the Appellant's product is a four stroke internal combustion
engine with two inlet valves and one exhaust valve which application had its own
special effects in the operation of the internal combustion of the engine or in its improvement, such an operation when supported by another valid Indian Patent No.196636 dated 25.05.2000, it will have to be necessarily held that the allegation of infringement based on the Respondent's patent No.195904 dated 16.07.2002 by itself cannot form the basis for the alleged infringement. In other words, we are convinced with the teachings of the Respondent's invention of its Patent No.195904 dated 16.07.2002 has been distinctively distinguished by the teaching of the patent No.196636 dated 25.05.2000, which supports the alleged infringed product of the Appellant and therefore the grant of injunction by the learned Single Judge cannot be sustained. (Para 80.)

When we apply the law laid down in the various decisions cited before us, as far as the validity of the patent is concerned, it is by now well settled that the validity of the patent can always be challenged in the High Court on various grounds for revocation as provided under Section 64 or the ground on which the allegation of infringement is to be established as provided under Section 104 and or could be defended under Section 107 of the Patents Act. (Para 76)
Further applying the well laid down principle that when application for revocation of a patent of the Respondent is pending before the Appellate Tribunal and when such an application has been preferred on the ground of existence of a prior art, obviousness and other formidable grounds as provided under Section 64 of the Patent's Act, the Court should not grant injunction in such cases. We hold that in the special facts and circumstances of the case, grant of interim injunction cannot be sustained. (Para 79)
As far as the application of the concept of pith and marrow of the claim, what is stated is that novel feature which is claimed to be essential would constitute the pith and marrow. If the pith and marrow of the Respondent and the Appellant are distinctively identifiable there is absolutely no scope for grant of injunction as has been done by the learned Single Judge. (Para 82.)
To be more precise, while the twin plug operation in the Respondent's internal combustion engine may have resulted in improved internal combustion, the three valve technology of the Appellant also with twin plug provision produce a distinctive product of its own, different from the claimed invention of the Respondent. (Para 84.)
We hold that the Respondent is not entitled for an injunction as applied for and the injunction granted by the learned Single Judge cannot therefore be continued. Both the appeals stand allowed.

The Trade Marks Act 1999
Section 29(4)
Reckitt & Colman Products Ltd. Vs. Borden Inc (1990) 1 WLR 491 Cited with approval. Held the principles enunciated have been incorporated in Statutes.
Rustom Ali Molla & Ors. Vs. Bata Shoe Co.Ltd. AIR 1957 Cal 120, is no longer good law.
Appeal in a suit for infringement and passing off of the trade mark SONY.
The complaint against the respondents is that they were applying the same trade mark on their
products, being hosiery goods, briefs and underwear, without the authorisation
or consent of the appellants. In connection with this suit, an application for
interim injunction was taken out by the appellants before the trial court, seeking
restraint order on use of the mark SONY by the respondents. Such prayer was
rejected. Against this order of rejection of prayer for temporary injunction by the
trial court, appeal before this Court was preferred by Sony Corporation.

Full Bench
“We agree with the views expressed by the Hon'ble Division Bench in the order out of which this reference arises”. (Para 30)

Reference by DB.
“We are saying so as we ourselves are of the view that if a person is the holder of a trade mark which has acquired a wide reputation transcending international barriers even though in respect of a specified clause or category of goods, that trade mark cannot be allowed to be violated by another person in respect of different category of goods because in our view that other person will be deliberately using the trade mark of the former with an intent to get some undue advantage because of its reputation and goodwill."
Answered in affirmative

Piracy
Held that in such cases there is no purpose in ordering accounts against
persons dealing in piracy, no accounts are kept of such sales. It has further been held that merely because the
defendants chose not to contest the suit the defendants cannot escape the liability for damages. In fact this court has also taken judicial notice of the sales at least in Delhi by such vendors. I do not find any reason to disbelieve the witness of the plaintiffs regarding damages and find the plaintiffs entitled to a decree for Rs 14 lacs.

Order 11 Rules 1 and 12
HELD "The entire case of the revision petitioner rests on the basis of their enquiry conducted in the matter which resulted in getting the alleged information about the imitations of their branded pen both in design and in shape. Therefore before granting permission to serve the interrogatories, the trial Court was expected to look into the questions for the purpose of arriving at a conclusion as to whether the revision petitioner should be compelled to disclose their nature of evidence in the suit. It is trite that a party is not entitled to serve interrogatories with a view to collect materials which would constitute the evidence of the opposite party. This provision is not a short cut for a party to win the case. The order of the trial Judge does not disclose that the basic requirements for permitting' service of interrogatories were considered in the matter.
The suit is also ripe for trial and in such circumstances, whether it was necessary to deliver the interrogatories with the questions as contained in the application in IA. No. 25 of 2002 was also not considered by the learned trial Judge. Therefore I am of the view that the entire issue need to be considered by the learned trial Judge afresh."
Impugned order set aside.

Sections 2(l)(j), 14, 15, 80 & 117A
Patent Rules, 2003
The Patents (Amendment) Rules, 2006 — Rule 24 (4)
HELD that no doubt appellant should comply with all the technical objections within first six months or any other reasonable period and resubmit the documents with all necessary amendments
Rule of
(i) audi alteram partem

"Earlier it has been held that the Controller is not a court or tribunal as per the case "Martin and Botling developments Ltd's DPD 356" and so the provisions of CPC are not applicable to him. If that be the case, the respondent could have very well relaxed the conditions of the section 80 of the Act and could have offered an opportunity of hearing to the appellant at his convenience before issuing this impugned order. Otherwise too it is very well cast on the learned Controller as an administering authority of the Patent Law, to have offered an opportunity of hearing to the applicant before taking any adverse decision on this application. In the present case, admittedly no notice was given to the appellant providing it a reasonable opportunity to defend its case. Not only that an opportunity of hearing notice was not given to the appellant, but even fresh objections were brought in the impugned order by the respondent, that have not been first communicated to the appellant so as to enable it to defend its case by presenting its views and observations. Moreover in the impugned order the respondent has categorically refused to grant the opportunity of hearing to the appellant under section 80 of the Act by taking the plea that there was inordinate delay in resubmission. The impugned order under consideration has been undisputedly made without affording an opportunity of being heard to the appellant, and that order does affect the appellant adversely."
Therefore the impugned order made without affording an opportunity of being heard Impugned order, set aside.

Application for revocation of patent . Invention titled "IMPROVED THRESHING AND SEPARATING MACHINE" It is a fact that such a knowledge is available in country for a long time, which every skilled worker in that field is, expected to know would be sufficient to invalidate a patent Concept of novelty with care has to be examined — It is not a mere mechanical application of mind or an "inevitable result" rule—Respondent specifically characterized the inventive features in his principal claim defining the scope of the invention which he sought to protect — Applicant's document does not anticipate the respondent's claim — Application for revocation, dismissed.

Return of the plaint sought on the grounds that constituted attorney is an advocate in the same case.
HELD " I am of the view that the issue of dual capacity as raised by the applicants is mere a technical irregularity, which does not affect the root cause of the issue as raised in the original suit, it would not cause any prejudice to the non-applicants if allowed to get cured. There is no legal bar to an advocate being appointed as a constituted attorney by a party for the purpose of a case. Moreover there is no suggestion of there being any mala fide."

Copyright Act, 1957, Sections 27(2) & 51
Plaintiff not residing or working for gain in Delhi — Territorial jurisdiction Invocation of jurisdiction of Court on the basis of vague allegations that the goods of defendants were being sold throughout the country including Delhi makes no sense

Order 39 Rule 3
HELD" that for passing an ex parte order the Court is required to record reasons that the object of injunction would be defeated by delay. No such reason and indeed no reason whatsoever has been recorded in the impugned order. Furthermore, we have noticed the fact that on merits also the appellant had issued a legal notice to the respondents in the year 2003, the reply to which did not state that the application for registration, filed by the respondent was in the year 1996, though it was stated in the said reply that the i user of the respondent/plaintiff was from the year 1992. In these circumstances, the veracity of the averment regarding the application of 1996 filed by the respondent/plaintiff was required to be looked into seriously before any order was passed granting an injunction which stops the business of the appellant in the disputed product."
Order of the learned Single Judge, set aside.

Plaintiff engaged in the business of manufacturing and marketing audio cassettes, video cassettes, compact disks, televisions, CD Players, fans, mineral water and various other products . Defendant illegally exploiting the sound recordings as well as the lyrics, musical compositions and music videos that are copyrights of the plaintiff . Defendants in continued breach of the plaintiffs copyrights and are seeking to unfairly gain an advantage over other Cable TV operators who have recognized the plaintiffs copyrights and have entered into valid public performance license agreements
HELD "I hereby restrain permanently all the other defendants, their officers, servants, agents and representatives and anyone acting for or on their behalf from engaging themselves or authorizing the public performance or communicating to the public or in any other way exploiting films, sound recordings and literary works (lyrics) and musical positions or other work or part thereof of the plaintiff."

Order 39 Rules 1 and 2
Plaintiff obtaining ex parte injunction by completely suppressing in the plaint that vide written agreements dated 19th August, 2002 and 20th September, 2002 (filed by the defendant No. 2 along with written statement), the plaintiff had agreed to be the authorised stockist of the defendants and the said agreements were executed on the letter-head of the defendants, which clearly mentioned the name/mark 'PRINCE Auto Industries'.
Howevre plaintiff using the distinctive trademark 'PRINCE' in respect of accessories for use in cars as registered owner. Defendant had been dealing in auto accessories and had made a mark in its field of activity well before the plaintiff got registered the trademark 'PRINCE'
Conduct of the plaintiff unbecoming of the confidence impliedly imposed by the Court in a plaintioff to state material facts.

HELD Sale figures of the defendant No.2 were nearly four times the sale figures of the plaintiff Interim orders, vacated alongwith other directions.

Section 29(4)(5) —
Suit for permanent injunction restraining infringement of trademark, passing off, damages, delivery of accounts . Plaintiff is the proprietor of the trademark SASKEN and of its logo it has world wide presence.
Defendant working under the name and style of Sasken Biotech Pvt. Ltd.
HELD "I accept the contention of the learned counsel for the plaintiff that the trademark "Sasken" is an invented word and the defendants have no jurisdiction to use the same either as a trademark or as part of their corporate name in relation to pharmaceutical goods of any kind. The defendants are thus guilty of infringement of trademarks within the meaning of Section 29(4)(5) of Trademark Act, 1999. As regards the case of passing off, it is well established law that no actual confusion and deception is necessary in order to prove the case.
Therefore relief of Rs 2 lac as punitive damages and cost of the suit awarded

Saturday, June 5, 2010

Section 29(4)(5) —
Suit for permanent injunction restraining infringement of trademark, passing off, damages, delivery of accounts . Plaintiff is the proprietor of the trademark SASKEN and of its logo it has world wide presence.
Defendant working under the name and style of Sasken Biotech Pvt. Ltd.
HELD "I accept the contention of the learned counsel for the plaintiff that the trademark "Sasken" is an invented word and the defendants have no jurisdiction to use the same either as a trademark or as part of their corporate name in relation to pharmaceutical goods of any kind. The defendants are thus guilty of infringement of trademarks within the meaning of Section 29(4)(5) of Trademark Act, 1999. As regards the case of passing off, it is well established law that no actual confusion and deception is necessary in order to prove the case.